Australia, Aug. 11 -- New South Wales Land and Environment Court issued text of the following judgement on July 11:

1. THE COURT: On 21 May 2025, the Court ordered that the applicant pay the costs of the first respondents (the Mitchells) of a notice of motion filed on 11 March 2025 on an indemnity basis and that the amount of those costs be fixed as a gross sum: see Litigation Fund WCX Pty Ltd v Mitchell (No 4) [2025] NSWCA 106. The notice of motion sought a review of a decision of Griffiths AJA delivered on 28 February 2025 by which his Honour ordered that (1) the applicant provide security in the amount of $70,022.50 in respect of an appeal from orders made by the primary judge (McGrath J) on 20 September 2024 and 11 December 2024; (2) a gross sum costs order made by the primary judge against the applicant in favour of the Mitchells in the amount of $134,607.95 be stayed pending the hearing and determination of the appeal against that order; and (3) the applicant pay the Mitchells' costs of the motions before his Honour on an indemnity basis and fixed in a gross sum of $69,336.33 (plus GST) and that those costs be paid within 28 days.

2. This judgment concerns quantification of the Mitchells' costs. It assumes familiarity with the Court's earlier judgment and uses the same abbreviations as used in that judgment.

3. The Mitchells claim costs in the amount of $27,824.50 inclusive of GST. That amount is made up of the following amounts:

a) Professional fees of their solicitors incurred in connection with the notice of motion in the sum of $14,410.00 plus GST;

b) Senior Counsel's fees of $6,000.00 plus GST;

c) Junior Counsel's fees of $2,210.00 plus GST;

d) An estimated amount of $2,675.00 plus GST for work in relation to the application for costs.

4. The application for a gross sum costs order is supported by an affidavit affirmed on 23 April 2025 by Mr Trevor Withane, the Mitchells' solicitor, who is a partner of Ironbridge Legal. Attached to Mr Withane's affidavit is a schedule that sets out a breakdown of Ironbridge Legal's professional costs which itemises the work done, who did the work, that person's charge out rate, the time taken (in units of 6 minutes) and the total claimed in respect of that item of work. It is Mr Withane's evidence that all that work directly relates to the application for review of the decision of Griffiths AJA.

5. In the submissions opposing the Mitchells' claim, the applicant has taken the schedule attached to Mr Withane's affidavit and objected to various items on the basis that the work is duplicative (shaded in yellow), the work relates to internal administrative work rather than legal work (shaded in blue), the work was "required due to availability of counsel" (whatever precisely that means) (shaded in red), the work relates to the preparation of a court book that was not used (shaded in green) and the work is unrelated to the motion (shaded with red and green).

6. The Mitchells take issue with each category of objection.

7. In fixing a gross sum, the Court is not undertaking an assessment: Hamod v State of NSW [2011] NSWCA 375 (Hamod) at [819] (Beazley JA, with whom Giles and Whealy JJA agreed). Rather, it is considering what costs ought reasonably be allowed on a gross sum basis, bearing in mind in this case that costs have been awarded on an indemnity basis. Normally, even where costs have been awarded on an indemnity basis it is appropriate to apply some discount to the actual costs incurred by a party in fixing an appropriate gross sum. That discount reflects the fact that even on an indemnity basis not all costs are recoverable on assessment. It also reflects the fact that a gross sum costs order necessarily carries with it the risk that the costs applicant will be over compensated compared to an assessment and at the same time avoids the costs and inconvenience of an assessment: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; Idoport Pty Limited v NAB, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23 at [13]; Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [38].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197f1a5e971f9d84027e0307)

Disclaimer: Curated by HT Syndication.